Yusupha Sanyang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 626/2021

[2024] HKCFI 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 626 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review of the Board’s 2^nd Decision be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 June 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 2^nd Decision”), which is on the BOR 2 risk. His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which is 18 September 2020. His application was filed on 4 May 2021, which is more than 7 months. This issue will be dealt with below.

2.The applicant asked for a hearing. He appeared before the Court on 5 June 2024.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 30, is a Gambian. He entered Hong Kong as a visitor on 16 June 2014. He overstayed since 15 September 2014 and he surrendered to the Immigration Department on 15 October 2014. The applicant made a non-refoulement claim on 12 November 2014. The claim was made on the basis that, if refouled, he would be harmed or killed by his elder brother because he wanted to take over the applicant’s share of his late father’s properties. On 27 March 2015, the applicant was arrested by the police due to drug trafficking and was subsequently sentenced to imprisonment of 16 months.

5.According to the applicant, his late father had three sons including the applicant. Before he died intestate in 2011, it was his intention that his properties be divided equally among his three sons and the same was known by the village elders. Yet, after the death of his father, his elder brother intended to inherit all his father’s properties. In around 2012, the applicant invited his elder brother for a discussion regarding the arrangement of his father’s properties. Upon hearing the applicant’s proposal for an equal division, his elder brother became furious and had a fight with the applicant. The applicant then ran away to his neighbour’s house with his elder brother chasing after him. Eventually, the applicant managed to hide from his elder brother and went to a clinic for medical treatment. Thereafter, he relocated to his friend’s home.

6.The applicant returned home after about three weeks. His elder brother was very angry when he saw the applicant and wanted to attack him again. Out of fear, the applicant ran away to the other side of the village and reported the matter to the police. However, they refused to register his complaint as they regarded this as a private matter. The applicant therefore went to stay with his friend again. While staying at his friend’s home, the applicant’s mother advised him to leave Gambia because his elder brother was after him.

7.On 24 May 2014, the applicant left Gambia for Senegal by ferry. On 12 June 2014, he arrived in Mainland China and subsequently came to Hong Kong on 16 June 2014.

8.The applicant was of the view that he could not seek protection from the police because they would not assist on private family dispute. He also considered internal relocation not viable because his relatives and friends had no means to support him living elsewhere in Gambia.

9.The applicant maintained contact with his mother while in Hong Kong. She told him in around July 2015 that his elder brother was still pursuing him. Meanwhile, during a telephone conversation with his friend on 25 August 2016, the applicant was informed that the police were seeking for his whereabouts as he had stolen a USB while he was working at the Gambia Civil Aviation Authority and passed it to his uncle (“Uncle”). He claimed that his “Uncle” was involved in various coups and the applicant was therefore afraid of being arrested by the police upon return to Gambia.

10.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 30 November 2015 (“the Director’s 1^st Decision”) and paragraph 4 of the Director’s Decision dated 1 August 2017 (“the Director’s 2^nd Decision”).

The Director’s Decisions

11.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

b.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”);

c.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); and

d.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”).

12.By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from his elder brother indicated a small future risk of harm upon his return to Gambia [15]; (ii) state protection would be available to him [17]; (iii) internal relocation would be viable [16], [17](sic) and (iv) the applicant’s case failed to meet any of the requirements under BOR 3 risk [19](sic) - [21](sic), Persecution risk [22](sic) -[25](sic) or Torture risk [26](sic) - [28](sic).

13.By way of the Director’s 2^nd Decision, the Director dismissed the applicant’s claim on BOR 2 risk. The Director found that (i) the applicant’s claim of having conversation with his “Uncle” in mid-2014 was contrary to the objective country information, which stated that his “Uncle” passed away in 2013; (ii) the fact that the applicant managed to leave Gambia for Senegal in May 2014 without any problem indicated that he was not of adverse interest to the Gambian authorities and (iii) the applicant’s failure to raise his claim of fear from Gambian police at his earliest opportunity was inconsistent with someone genuinely in fear [5]. The Director therefore rejected the applicant’s claim on BOR 2 risk.

The Board’s Decisions

14.The applicant appealed the Director’s 1^st Decision to the Board. On 26 April 2016, the Board conducted an oral hearing.

15.The Board considered the applicant’s evidence not credible because (i) it was illogical for the applicant’s elder brother to only threaten killing the applicant, but not the applicant’s younger brother if the three brothers were to share the inheritance; (ii) it was illogical for the village elders to be afraid of the applicant’s elder brother, given that he was unemployed and without apparent source of power or influence and (iii) the village elders could have utilised customary law to carry out the applicant’s father wishes [37].

16.The Board also found the applicant’s failure to claim non-refoulement protection whilst in Mainland China and his failure to apply for non-refoulement protection upon arrival in Hong Kong detrimental to his credibility [38]. In any event, the Board were of the view that the applicant’s claim was implausible and inconsistent [39], given that there was no reliable evidence showing that (i) the applicant’s father was the registered owner of a plot of land, (ii) his elder brother was in any way connected to the Gambian authorities and (iii) the applicant’s physical and mental suffering reached the requisite severity [40] - [48].

17.Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Torture risk, Persecution risk or BOR 3 risk [50] - [77], [80] - [82]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision. This is the Board’s 1^st Decision, which the applicant has not appealed against.

18.The applicant also appealed the Director’s 2^nd Decision to the Board. The Board decided that it was unnecessary to hold a hearing due to the unreliable and implausible nature of the applicant’s claim [7]. It considered it implausible that (i) his “Uncle” had done many things for the applicant because the applicant was born in 1994 while his “Uncle” had already left Gambia since 1981 and (ii) the applicant to have been in contact with his “Uncle” in 2014, because information showed that his “Uncle” died in 2013 [8] - [9]. The Board further had doubts towards the stealing of USB and even inferred that it might be a recent invention by the applicant [10] - [11].

19.Based on such findings and taking into account also the applicant’s claim about the risk of harm from his elder brother, the Board rejected his claim under BOR 2 [13] - [21]. It therefore dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review of the Board’s Decision

20.The applicant has filed Form 86 on 4 May 2021 for leave to apply for judicial review of the Board’s 2^nd Decision.

21.In his affirmation in support of his application, the applicant said the he disagreed with the Board’s 2^nd decision on BOR 2 risk. He cannot go back to his country or he may be killed.

DISCUSSION

22.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

23.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he understood the Board’s Decisions. However, he wants the Court to review the Board’s Decisions. I have taken into consideration of the Board’s 1^st Decision as the facts are the same.

24.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

25.For the reasons given above, the Board disbelieved the applicant’s evidence in support of his claim. The applicant said he understood the Board’s Decisions. Yet, he has raised no valid reason to challenge the Board’s Decisions. In the circumstances, it is reasonable for the Board to have come its decisions.

26.The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

27.Furthermore, the delay is serious and the applicant has offered no explanation for his delay.

CONCLUSION

28.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.

Dated the 27^th day of August 2024

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1